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chapter 4.4

发布时间:2014-02-26 14:07:24  

4.4 Performance of Contract
French Civil Code
Agreements lawfully entered into take the place of the law for those who have made them.
依法成立的合同,在订约的当事 人之间具有相当于法律的效力。

German Civil Code
By virtue of an obligation an obligee is entitled to claim performance from the obligor.
债权人依据债务关系,有向债 权人请求给付的权利。

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Article 60 :The parties shall perform their obligations thoroughly according to the terms of the contract. The parties shall abide by the principle of good faith and perform the obligations of notification, assistance and maintaining confidentiality, etc. based on the nature and purpose of the contract or the transaction practices.

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Article 61: Where, after the contract becomes effective, there is no agreement in the contract between the parties on the terms regarding quality, price or remuneration or place of performance, etc. or such agreement is unclear, the parties may agree upon supplementary terms through consultation. In case of a failure in doing so, the terms shall be determined from the context of relevant clauses of the contract or by transaction practices.
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Article 62 If the relevant terms of a contract are unclear, nor can they be determined according to the provisions of Article 61 of this Law, the provisions below shall be applied: (1) If the quality requirements are unclear, the State standards or trade standards shall be applied; if there are no State standards or trade standards, generally held standards or specific standards in conformity with the purpose of the contract shall be applied. (2) If the price or remuneration is unclear, the market price of the place of performance at the time concluding the contract shall be applied; if the government-fixed price or governmentdirected price shall be followed in accordance with the law, the provisions of the law shall be applied.
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(3) If the place of performance is unclear, and the payment is in currency, the performance shall be effected at the place of location of the party receiving the payment; if real estate is to be delivered, the performance shall be effected at the place of location of the real estate; in case of other contract objects, the performance shall be effected at the place of location of the party fulfilling the obligations. (4) If the time limit for performance is unclear, the obligor may at any time fulfill the obligations towards the obligee; the obligee may also demand at any time that the obligor performs the obligations, but a time limit for necessary preparation shall be given to the obligor. (5) If the method of performance is unclear, the method which is advantageous to realize the purpose of the contract shall be adopted. (6) If the expenses of performance is unclear, the cost shall be born by the obligor.
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4.5 Remedies for Breach of Contract A breach of contract is defined as a failure to fulfill the duties under the agreed

upon terms.
违约是指合同一方当事人由于某种原因没有履行其合同义务,或没有 完全履行其合同义务的行为。 “实际履行;强制履行;继续履行”

Specific performance (civil law)
Primary remedy

Damages (common law)
“损害赔偿”

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4.5.1Damages (under common law)
1.Types of damages

Consequential damages
Punitive damages Liquidated damages Nominal damages

间接损害赔偿 惩罚性损害赔偿 预定违约金赔偿 象征性损害赔偿

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4.5.1Damages (under common law)
Sum awarded of damages
1.Remoteness of loss (损失的范围—间接损害)
ⅰ.What arises naturally;损失是自然发生的 ⅱ.What the parties could foresee at the time

of conclusion.损失必须是当事人在订立合同时作为违
约可能产生的后果所合理预见到的。

See. Hadley v.Baxendale
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Hadley v.Baxendale
[1 ]The plaintiffs, Mr Hadley and another, were millers and worked together in a partnership as proprietors of the City Steam-Mills in Gloucerster (known as Priday's, now apartments). They cleaned grain, ground it into meal and dressed it into flour, and bran. Hadley and Anor arranged to have a new crankshaft made for the steam engine by W. Joyce & Co. in Greenwich.

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[2 ] Before the new crankshaft could be made, W. Joyce & Co. required that the broken crankshaft be sent to them in order to ensure that the new crankshaft would fit together properly with the other parts of the steam engine. [3] The plaintiffs contracted with defendants Baxendale and Ors, who were operating together as common carriers under the name Pickford & Co., to deliver the crankshaft to engineers for repair by a certain date.

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[4 ] Baxendale failed to deliver on the date in question, causing Hadley to lose business. Hadley sued for the profits he lost due to Baxendale's late delivery, and the jury awarded Hadley damages of £25. Baxendale appealed In this case was the defendant in a breach of contract liable for the profits losses incurred be reason of late delivery?

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4.5.1Damages (under common law)
Sum awarded of damages
2.The measures (or quantum) of damages Compensatory damages “补偿性损害赔偿” The most usual basis of compensatory damages is to put the innocent party into the same financial position he would have been in had the contract been properly performed.
补偿性损害赔偿金的目的在于给守约方以合同假定已得以履行的同等地位。

●Expectation loss “预期损失“

Reliance loss

“信赖利益损失”

● The difference between the market price and contract price ● The innocent party: minimize the loss
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Example
Suppose you hire someone to build a fence around your house for $500. When that person reneges, you hire someone else to do the job for $600. You are entitled to collect compensatory damages of $100 from the first fence builder. The $100 in damages puts you in the same position you would have been had the original contract been performed. N

ote that no compensatory damages would be allowed if the second fence builder charged $400.

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4.5.1Damages (under common law)
Sum awarded of damages
3.Liquidated damages and punitive damages

Liquidated damages are damages that the parties have agreed to pay in the event that the contract is breached.
预定违约金赔偿是指合同各方当事人同意作出的,在违约的情况下支付 的赔偿金。

“If either party fails to perform his obligations as specified in this agreement, he shall pay the other party the sum of $1000 as liquidated damages.”
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4.5.1Damages (under common law)
3.Liquidated damages and punitive damages
Punitive damages are intended to punish the breaching party and to deter him from committing the same offense again. Although they are rarely awarded in contract actions, they may be awarded in cases involving fraud, malice, or violence.
惩罚性损害赔偿意在惩罚违约方,并阻止其再次实施该种违约行为。 尽管在合同案件中,法院很少作出惩罚性损害赔偿判决,但是在涉及 欺诈、恶意或暴力案件中,可能会做出该种形式的救济。
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White v. Benkowski (punitive damages)
[1]Prior to November 28, 1962, Virgil and Gwynneth White, the plaintiffs, were desirous to purchasing a home in Oak Creek. Unfortunately, the particular home that the Whites were interested in was without a water supply. Despite this fact, the Whites purchased the home. The adjacent home was owned and occupied by Paul and Ruth Benkowski, the defendants. The Benkowskis had a well in their yard which had piping that connected with the Whites’ home.

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White v. Benkowski (punitive damages)
[2] On November 28, 1962, the Whites and Benkowskis entered into a written agreement wherein the Benkowskis promised to supply water to the White home for ten years or until an earlier date when either water was supplied by the municipality, the well became inadequate, or the Whites drilled their own well. The Whites promised to pay $ 3 a month for the water and one-half the cost of any future repairs to maintenance that the Benkowski well might require.

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White v. Benkowski (punitive damages)
[3]As part of the transaction, but not included in the written agreement, the Whites gave the Benkowskis $400 which was used to purchase and install a new pump and an additional tank that would increase the capacity of the well. [4]Initially ,the relationship between the new neighbors was friendly. With the passing of time, however, their relationship deteriorated and the neighbors actually became hostile.

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[5]In 1964, the water supply , which was controlled by the Benkowsikis, was intermittently shut off the water. The Whites commenced an action to recover compensatory and punitive damages for an alleged violation of the agreement to supply water. A jury trial was held. The jury returned a verdict which found that the Benkowskis maliciously shut off the Whites’ water supply for harassment

purchases. Compensatory damages were set at $ 10 and punitive damages at $ 2,000. [6] On motions after verdict, the court reduced the compensatory award to $ 1 and granted defendants’ motion to strike the punitive damage question and answer. Judgment for plaintiffs of $ 1 was entered and they appeal.
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White v. Benkowski (punitive damages)
1. In this case, what was the loss of the plaintiffs?
2. What functions do punitive damages play?

3. What decisions should the appellant trial make?

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4.5.1Damages (under Civil law)
Elements for determination of the damages
Subjective element
主观要件(主观过错)

Objective element

客观要件
违约行为 损害事实 因果关系

ⅰ Unlawful behavior ⅱ Harmful fact ⅲ Link of causality

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4.5.2 Specific Performance(实际履行)
1.Common Law

Equitable relief(衡平救济)
Specific performance
Injunction (禁令)

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4.5.2 Specific Performance(实际履行)
Specific performance is not available in the following circumstances: (1)Damages provide an adequate remedy(金钱损害赔偿已可以
作为充分的救济方法)

(2)be possible against one party to the contract, but not the other(会对一方不利,而对另一方有利)
(3)The order could cause undue hardship(会给被告造成
过分苛刻的负担)

(4)The party acted unfairly and unconscionably(原告的行为
本身不正当或不公平)

(5) Maxims :Delay defeats the Equities.(会违反衡平法的格言)
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4.5.2 Specific Performance(实际履行)
2. Civil law (French)
Article 1184 provides that a condition subsequent is always implied in synallagmatic contracts, for the case where one of the two parties does not carry out his undertaking. In that case, the contract is not avoided as of right. The party towards whom the undertaking has not been fulfilled has the choice either to compel the other to fulfill the agreement when it is possible or to request its avoidance with damages.
契约双方当事人的一方在不履行其债务时,债权人有选择之权,即在合同 的履行尚属可能时,请求他方当事人履行合同,或者解除合同并请求损害 赔偿。

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4.5.2 Specific Performance(实际履行)

2.Civil law (Genman)
Article 241 provides that by virtue of an obligation an obligee is entitled to claim performance from the obligor.
债权人根据债权债务关系,有向债务人请求履行债务的权利。

◇Non-performance

Specify a reasonable period

Demand damages

◇Performance
becomes impossible

Demand damages
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4.5.2 Specific Performance(实际履行)
2.Civil law
Where a party fails to perform, or rendered non-performing performance of , a non-monetary obligation, the other party may require performance, except where:(1) performance is impossible in law or in fact;(2) the subject matter of the obligation does not lend itself to enforcement by specific performance or the cost of performance is excessive; or (3)the ob

ligee does not require performance within a reasonable time.
一方当事人不履行非金钱债务或履行不符合合同约定,另一方当事人可以 要求其继续履行。但下列情形除外:(1)法律上或事实上不能履行; (2)标的不适合强制履行或履行费用过高;(3)债权人在合理期间内 未要求履行。
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4.5.3 Rescission (解除合同)
1.Common law
Equitable remedy (衡平救济) Apply to: substantial and fundamental breach
(重大实质违约)

Effects: status quo ante (恢复原状)

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4.5.3 Rescission (解除合同)
2.Civil law (French)
Article 1184 provides that a condition subsequent is always implied in synallagmatic contracts, for the case where one of the two parties does not carry out his undertaking. In that case, the contract is not avoided as of right. The party towards whom the undertaking has not been fulfilled has the choice either to compel the other to fulfill the agreement when it is possible or to request its avoidance with damages.
契约双方当事人的一方在不履行其债务时,债权人有选择之权,即在合同 的履行尚属可能时,请求他方当事人履行合同,或者解除合同并请求损害 赔偿。
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4.5.3 Rescission (解除合同)
2.Civil law (German)
(1)Supervening impossibility of performance (履行不能)

Demand compensation
Withdraw the contract

(2)Delay in performance (迟延履行)
Specify a reasonable period Refuse acceptance Demand compensation

Withdraw the contract
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4.5.3 Rescission (解除合同)

2.Civil law (China)
①Force majeure (不可抗力致使不能实现合同目的) ② rejection of perform (合同履行期届满之前,当事人明确或默
示表示他将毕不履行主要债务)

③ Delay in performing principle obligation (迟延履行主要债务,经催
告后在合理期间内仍未履行)

④Delay in performing obligation so that purpose of the contract may
not be realized (迟延履行或其他违约行为致使不能实现合同目的)

⑤any other circumstances (法律规定的其他情形)
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4.5.4 Injunction (禁令)
An injunction is a court order directing a person to do something (a mandatory injunction) or to stop doing somenthing ( a prohibitory injunction ). An injunction is a type of equitable relief under the Common law.
禁令是英美法中一种衡平救济方式,由法院发出禁令,强 制被告实施某项行为(强制性禁令)或不许为某项行为 (禁止性禁令)的规定。

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